Sneller Verbatim/JduP
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR533/02
2002.09.25
In the matter between
GOVERNMENT COMMUNICATION AND
INFORMATION SYSTEMS Applicant
and
CCMA AND OTHERS Respondent
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J U D G M E N T
EX TEMPORE
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REVELAS, J:
1. This is an unopposed application in terms of section
145 of the Labour Relations Act, 66 of 1995 ("the
Act").
2. The applicant seeks to set aside the award made by the
second respondent in favour of the third respondent,
the erstwhile employee of the applicant, who was
dismissed by it.
1. 3. The grounds upon which the applicants dismissed the
third respondent was for poor performance but also
misconduct in the sense that she absented herself from
work on several occasions without explanation, and was
often absent from her workstation.
1. 4. During the disciplinary inquiry the applicant was
not called by her representative to lead evidence
although she pleaded not guilty to the charges. She
exercised her right to appeal, and it was indicated
that at the appeal hearing new evidence was to be led.
This was not done. The arbitrator took a very strong
view against the representative of the third
respondent, who elected not to give evidence.
5. The third respondent's job description included the
management of certain aspects of the applicant in its
exhibition studio, in a professional cost effective and
efficient manner to government clients, including the
office of the President of South Africa, the National
and Provincial Governments, the GCIS Head Office and
the GCIS Regional Offices.
6. It was not disputed at the arbitration hearing and it
was indeed found by the arbitrator that there was some
form of counselling conducted with the third
respondent at least.
7. There is also a comprehensive list, drafted by the
applicant, about the charges and allegations of
misconduct. In the report written by the disciplinary
inquiry chairman the chairperson took into account that
the third respondent is a mother, but that nonetheless
she was given sufficient opportunity to mend her ways
and he held the view that the third respondent had
illustrated that she no intention to mend her ways. The
chairperson found that the aggravating factors far
outweighed the mitigating factors as provided by the
third respondent.
1. 8. The arbitrator seemed clearly very sympathetic
towards the third respondent and found that she had an
abusive relationship since 1996, and that this "could
have affected work performance", and that was the
applicant's case. The arbitrator found that on the
evidence before him, it has been established that the
third respondent was assessed on a number of occasions
and the assessment results were that she was not "doing
well". The arbitrator then rhetorically asks:"Did the
employer establish the reason why the employee
performed?" ( sic). The arbitrator then answers the
question: "Whoever is before me does not say so, yet
the applicant performed poorly, but why?"
9. Finally, after expressing criticism about the third
respondent's representative, the arbitrator concludes:
"I hold therefore that respondent ... not proved that it has
established the reason for poor performance. Applicant had an
abusive domestic relationship. Management of respondent
knew about this. Employees' system programmes were not
used to help applicant in her situation. Applicant was only
helpful after the dismissal. Is this not like closing the stable
door after the horses had bolted?"
10. It was argued that the arbitrator took into account
irrelevant evidence.
1. 11. My criticism of the arbitrator's finding is that
she laid great emphasis on an abusive relationship, yet
it is not apparent how this influenced the applicant's
work situation. The third respondent did not bring this
to the attention of the presiding chairperson of the
disciplinary inquiry, and neither did she attempt to
show how this influenced her work performance at any
stage, when she was counselled or otherwise. In my view
the arbitrator's conclusion is not rationally or
reasonably connected to the facts before him.
12. In the circumstances his award is set aside.